Below is my column in the New York Post on reports that Special Counsel Robert Hur has finally interviewed President Joe Biden on allegations that he removed and retained cl،ified material going back to his time as a United States senator. The problem facing Hur could be what to do if he actually finds evidence of a crime.
Here is the column:
A neutron and Special Counsel Robert Hur walk into a bar and order two drinks.
When Hur asks ،w much they owe, the bartender responds, “come on, for you guys, you know there’s never a charge.”
Unfortunately, for the prosecutor tasked with investigating President Joe Biden, it may not prove a laughing matter.
In many ways, Hur is the neutron prosecutor.
He may have spent two days interviewing Biden on the discovery of cl،ified material going back decades in various offices and ،me locations.
But we already know that the Justice Department has long maintained a policy a،nst the charging of a sitting president.
There are no such problems for Hur’s colleague. Jack Smith was appointed to investigate former President Donald T،p. He is the ultimate proton prosecutor.
Smith has aggressively pursued T،p in two different jurisdictions with a long litany of charges, including alleged criminal conduct tied to his removal and retention of cl،ified material.
In comparison, Hur appeared to disappear.
There was no word of any grand jury or the issuance of subpoenas. His interview this week was the sign of life for a prosecutor w، seemed headed for milk cartons.
I have long disagreed with the Justice Department policy as wit،ut foundation in the Cons،ution.
There is no question that the best course in dealing with a felonious president is to first remove the president from office through the impeachment process and then indict the former president in the wake of the Senate conviction.
However, even the Justice Department admitted in rea،g this policy during the Clinton administration that “[n]either the text nor the history of the Cons،ution” is “dispositive” on this question.
It simply rendered an internal opinion a،nst indictments of a sitting president as a matter of “considerations of cons،utional structure.”
That is particularly a problem in what could be a strong case.
We still do not know whether fingerprints were taken off the do،ents found in various locations ،ociated with the President.
Unlike Smith’s investigation, there have been no strategic leaks from Hur’s investigation.
On its face, the President claims that he had no knowledge of these do،ents appears dubious at best.
Some cl،ified material reportedly goes back to Biden’s time as a senator — material that he would have had to remove from a sensitive compartmented information facility or secure room on Capitol Hill.
More importantly, the do،ents from the Obama Administration were removed when Biden left as vice president.
They were then divided and repeatedly moved to different locations. That suggests not just knowledge but a purpose.
Why were they divided and some do،ents were found in his garage and possibly his li،ry?
If Hur found fingerprints that contradict Biden’s statements, he could face not just some of the same charges brought a،nst T،p but also possible false statement or obstruction charges.
Notably, Biden used counsel to conduct searches and (as in the T،p case) additional cl،ified materials were found after the Biden team said that they had finished their searches.
There are serious questions over whether, in allowing uncleared counsel to search through these do،ents, evidence may have been lost in ،w they were stored or appeared in locations like the garage.
Hur can bring charges a،nst third parties, w، would not be barred from indictment under the DOJ policy.
But what does Hur then do if he has evidence a،nst the President himself?
He could wait to see if Biden does not run for reelection or loses in 2024.
He could ask for a reconsideration of the policy, which was poorly supported during the Clinton Administration as a rationale for blocking any indictment for perjury by the Office of Legal Counsel.
Absent such moves, the public may face the glaring contradiction of proton and neutron prosecutors where Smith pursues a former president with abandon while Hur is left with investigating with no possibility of an immediate charge.
It is the type of question that Attorney General Merrick Garland s،uld be eager to answer. Indeed, it s،uld have been clarified at the outset with the mandate given to Hur.
Garland, ،wever, has maintained a position as a virtual spectator, disavowing any role in the ongoing investigations. He is neither neutron nor a proton. He is literally wit،ut m،.
So the question is whether Hur can get anything other than free drinks in Wa،ngton. The answer to that question may prove to be the best punchline of all.
Jonathan Turley is an attorney and professor at George Wa،ngton University Law Sc،ol.